American Conference Institute's 2nd National Forum on Insurance Allocation

June 25 – 26, 2015

Agenda

Day 1 - Thursday, June 25, 2015

7:30	Registration and Continental Breakfast
8:00	Co-Chairs’ Opening Remarks
8:05	Views from the Bench: Judicial Perspectives and Guidance for Insurance Coverage Litigation
9:45	Networking and Refreshment Break
9:55	State of Existing Allocation Law, With a Focus on Asbestos, Environmental, and Other Long-Tail Claims
11:20	Relationship Between Allocation and Trigger, With a Focus on Asbestos, Environmental, and Other Long-Tail Claims
12:40	Networking Luncheon for Speakers and Attendees
1:40	Second Wave Allocation Issues: SIRs, Deductibles, Exhaustion, and More
3:00	Networking and Refreshment Break
3:10	Importance of Choice of Law: Assessing the Current Rules in Key Jurisdictions, Recent Allocation Rulings and Their Impact on Disputes, and More
4:10	Allocation of Defense Costs in the D&O Context
5:00	Conference Adjourns to Day Two

Day 2 - Friday, June 26, 2015

7:30	Continental Breakfast
8:00	Excess Insurance: Questions Raised by Qualcomm and Issues Relating to the Duty to Defend
9:15	Allocation Issues That Arise When Reinsurance is Involved
10:35	Networking and Refreshment Break
10:45	Bankruptcy, Insolvency, and Their Impact on Insurance Allocation
12:00	Resolving Allocation Disputes Through Mediation
1:00	Conference Ends

Day 1 - Thursday, June 25, 2015

7:30	Registration and Continental Breakfast
8:00	Co-Chairs’ Opening Remarks Stephen Hoke Partner Hoke LLC Scott M. Seaman Hinshaw & Culbertson LLP
8:05	Views from the Bench: Judicial Perspectives and Guidance for Insurance Coverage Litigation Hon. Jeff Shadwick Harris Co. 55th Civil Dist. Ct., Tex. Hon. Jose M. Rodriguez 11th Judicial Circuit Court of Florida Hon. Anthony J. Mohr Judge Los Angeles Superior Court Hon. Richard Kramer (ret.) CA Super. Ct., San Fran. Hon. Patrick J. Walsh U.S. Dist. Ct., C.D. Cal. The Honorable Peter Flynn (ret.) Judge Circuit Court, Cook County Illinois Hon. Richard S. Schmidt U.S. Bankr. Ct., S.D. Tex. Hon. Donetta W. Ambrose Senior District Judge U.S. Dist. Ct., W.D. Pa. Hon. Ruben Castillo U.S. Dist. Ct., N.D. Ill. Moderator: Moderator: Steven R. Gilford Proskauer Rose LLP
9:45	Networking and Refreshment Break
9:55	State of Existing Allocation Law, With a Focus on Asbestos, Environmental, and Other Long-Tail Claims Sharon T. Doherty Senior Coverage Counsel, NAC Claims Legal Group Zurich North America Jeffrey O. Davis Partner Quarles & Brady LLP Laura A. Foggan Partner Wiley Rein LLP Frank Winston Jr. Partner Steptoe & Johnson LLP Tancred Schiavoni O’Melveny & Myers LLP All sums Impact of newer “those sums” language on allocation issues, including in states where allocation has been addressed under prior policy language How credits for prior settlements are handled in allocation Pro rata Start and end dates for proper application of pro rata allocation Others (e.g. New Jersey’s approach in Carter Wallace) Texas’ approach Differences amongst the approaches to allocation used for asbestos, environmental, and other long-tail claims Unique issues that arise Best practices for overcoming unique challenges “Other insurance” clauses vs. public policy Independent counsel (Cumis) Rights to and limitations on Cumis counsel Examples of when the right is triggered
11:20	Relationship Between Allocation and Trigger, With a Focus on Asbestos, Environmental, and Other Long-Tail Claims James F. Dorion Managing Director - Global Practice Leader, Complex Liability & Risk Services Marsh Robert D. Goodman Partner Debevoise & Plimpton LLP Stephen Hoke Partner Hoke LLC Lynn H. Murray Shook, Hardy & Bacon L.L.P. Continuous trigger Others (e.g. Illinois’ triple trigger approach) Manifestation trigger (e.g. Keasbey) Uninsured periods Contribution permitted? Differences amongst the approaches to trigger used for asbestos, environmental, and other long-tail claims Unique issues that arise Best practices for overcoming unique challenges
12:40	Networking Luncheon for Speakers and Attendees
1:40	Second Wave Allocation Issues: SIRs, Deductibles, Exhaustion, and More Alex E. Potente Sedgwick LLP Donna J. Vobornik Dentons US LLP Timothy R. Sullivan Partner McCormick Barstow LLP Policy years with insolvencies SIRs and deductibles Differences between SIRs and deductibles Exhaustion of same Key question for policyholders – how many SIRs do they pay? Bankruptcy considerations Number of occurrences Non-cumulation clauses Horizontal exhaustion – exhaustion by layers (primary vs. excess) Who is responsible for gaps as coverage in a given layer exhausts? Lincoln Electric White space (i.e. underinsured years due to exhaustion or failure to buy enough coverage) Stacking issues Types of policies that can be stacked Impact of SIRs, deductibles, etc. Issues that can arise as policy layers exhaust How do you prove exhaustion of underlying coverage? What do you do when excess insurers refuse to acknowledge exhaustion? Who controls the defense when some coverage is primary and the rest is excess or exhausted with no defense duty?
3:00	Networking and Refreshment Break
3:10	Importance of Choice of Law: Assessing the Current Rules in Key Jurisdictions, Recent Allocation Rulings and Their Impact on Disputes, and More Robert M. Horkovich Partner Anderson Kill, P.C. Suzanne C. Midlige Coughlin Duffy LLP Recent allocation rulings and their impact on current and future allocation trends and disputes Assessing the various jurisdictional approaches to allocation Current rules in key jurisdictions Unresolved issues and the next possible battlegrounds Advantage of filing first? Benefits of securing a favorable jurisdiction
4:10	Allocation of Defense Costs in the D&O Context Tyler C. Gerking Farella Braun + Martel LLP Susan White Partner Manatt, Phelps & Phillips, LLP Defense v. indemnity for defense Exclusions impact Allocation between covered and uncovered claims Allocation when the entity is covered but not individuals Allocation between defense costs and indemnity costs
5:00	Conference Adjourns to Day Two

Day 2 - Friday, June 26, 2015

7:30	Continental Breakfast
8:00	Excess Insurance: Questions Raised by Qualcomm and Issues Relating to the Duty to Defend Scott M. Seaman Hinshaw & Culbertson LLP Steven C. Schwartz Partner Chaffetz Lindsey LLP Seth D. Lamden Neal, Gerber & Eisenberg LLP Helen K. Michael Kilpatrick Townsend & Stockton LLP Does a primary carrier’s settlement for less than its full limits trigger the excess policy status? Settlement considerations when in a Qualcomm jurisdiction Where do key jurisdictions stand with respect to these issues? Case law regarding duty to defend by excess carriers Case law regarding possible drop down by excess carriers
9:15	Allocation Issues That Arise When Reinsurance is Involved Marc L. Abrams Member Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. Amy R. Paulus Clausen Miller P.C. Ira J. Belcove Partner Butler Rubin Saltarelli & Boyd LLP Michael J. Blair Vice President – Environmental Claims Gen Re – A Berkshire Hathaway Company Dennis Helewa Vice President & Assistant Counsel, Claims SCOR Reinsurance Follow the fortunes clauses How binding are a cedant’s settlement allocations? Key points of contention between cedents and reinsurers Number of deductibles Assessment of recent key cases
10:35	Networking and Refreshment Break
10:45	Bankruptcy, Insolvency, and Their Impact on Insurance Allocation Robert Lenahan Associate General Counsel Legion Insurance Company (in liquidation) Peter L. Tracey Partner Perkins Coie LLP Ernesto R. Palomo Locke Lord LLP Jeanine D. Clark Partner Margolis Edelstein Allocation in policyholder bankruptcies Different approaches Valuing future losses Garlock discussion/update Valuing supplemental defense costs (i.e. costs in addition policies) Standing issues Defunct companies Revival of defunct companies to access insurance – state of the law Who controls defense and settlement and related issues? Recovery from insolvent insurers Status of U.S. and UK law Allocation approaches Prevalence of the pro rata approach in the U.S. and UK Choice of law – Midland (all sums possible in New York) Is IBNR permitted? How do you value this? How to prepare and present a claim Trigger and date of first exposure (DOFE) issues Exhaustion issues How do you value the impact of exclusions (e.g. pollution exclusion)? State Guaranty Associations Assessing the impact of Farmers Mutual No contribution for other insurers Is this case a sign of things to come or an outlier? Impact on Carter Wallace ruling regarding insolvents
12:00	Resolving Allocation Disputes Through Mediation Jeff Kichaven Principal Mediator Jeff Kichaven Commercial Mediation Eileen King Bower Troutman Sanders LLP Cassandra S. Franklin Managing Attorney – Claims Coverage Counsel Allianz Global Corporate & Specialty Mediation strategies to use when negotiating settlements in jurisdictions with unsettled allocation issues, multiple claimants, and concepts unfamiliar to plaintiffs’ counsel and insureds Navigating the mediation process when disputes over limits or coverage are involved Unique considerations for mediating allocation among consecutive policy periods, overlapping types of coverage, and/or multiple parties Setting the stage in advance of mediation How to select an effective mediator for allocation
1:00	Conference Ends

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